Branham v. Stallings

Chief Justice Hayt delivered the opinion of the court. By the answer of the defendants it appears that the parties plaintiff and defendants, with others, associated themselves together, organized and formed a lottery association known as the “Denver Lot Club; ” that they entered into an agreement by the terms of which they were each to pay $2.00 per week, and that drawings were to be had every Mon [215] day, at which drawings one of the members was to receive a lot. It further appears that the plaintiff and his assignors became members of said club and participated in the meetings and the drawings, and that the plaintiff repeatedly acted as one of the judges and presided over said meetings. It also appears that a number of lots were drawn by the assignors of plaintiff in pursuance of such illegal contract, and that deeds were duly made to said parties for such lots. These uncontradicted allegations show conclusively the illegality of the contract entered into between the plaintiff and his assignors and the defendants. It was .a lottery scheme, pure and simple, and as such prohibited by the constitution of this state and also by statute. It is shown that these parties voluntarily associated themselves together for the purpose of carrying out this illegal scheme. “In pari delicto portior est conditio defendentis,” — “ In equal guilt, the stronger is the situation of the defendant,” is a maxim of the law, or, as it is sometimes expressed, “Where misconduct is mutual the law will not lend its aid to either party.” This rule was not adopted for the benefit of defendants, but simply upon the grounds of public policy. Subject to a few well known exceptions, the law is well established that where such a contract is executory the law will not aid either party to enforce its execution, and where it has been executed, or money paid in pursuance thereof, the law will not aid the party to recover back the amounts paid. The exceptions cover cases of usurious contracts, marriage brokerage contracts, and the like, where the transactions are prohibited for the sake of protecting one set of men from another, the one from their condition or situation being liable to be imposed upon by the other, as in such cases the parties are not in pari delicto, and it is assumed that public policy will best be advanced by granting relief. 2 Pomeroy’s Eq. Jur., sec. 941, and cases cited in note. In this case, however, plaintiff and his assignors admittedly joined with a lottery association in direct violation of the statutes of this state, and do not come under the princi [216] pie governing the excepted. cases. The statute reads as follows: “No person or persons, corporation or association, shall, within this state, open, set on foot, carry on, promote, or draw, publicly or privately, any lottery, game or device of chance of any nature or kind whatsoever, or by whatever name it may be called, for the purpose of exposing, setting to sale, .or disposing of any houses, lands, tenements, mines, or real estate, or any money, goods, or things in action. Whatever [whoever] violates this provision, shall, for each offense, upon conviction, upon indictment, be fined not less than one hundred dollars, or imprisoned in the county jail not less than sixty days, or both, in the discretion of the court.” Sec. 2928, Mills’ An. Stats. It is alleged in the answer, and not denied, that these pai'ties associated themselves together under circumstances showing that they were particeps criminis in an illegal scheme to dispose of lots by chance. They are in pari delicto, and neither courts of equity nor courts of law will aid either; and where money has been paid by either party upon such a contract, it cannot be recovered back, for the reason that courts will not assist such a transaction in any way. Broom’s Legal Maxims, pp. 720-728, et seq.; Norris v. Norris’ Admr., 9 Dana’s Ky. Reps. 317; Nellis v. Clark, 20 Wend. 24; Solinger v. Earle, 82 N. Y. 393; Setter v. Alvey, 15 Kan. 157. In the case of Norris v. Norris’ Admr., supra, it is said : “ When the parties to an illegal or fraudulent contract are in pari delicto, neither a court of equity nor a court of law will aid either of them' in enforcing the execution of that which may be executory, or in revoking or rescinding that which may have been executed. In such a case, the law will not be the instrument of its own subversion, and, to every invocation of its assistance, replies, ‘In pari delicto portior est conditio defendentis.’ ” The judgment of the county court must be reversed and the cause remanded. Reversed.